from the damn dept

THREsq alerted us to the news of a company named DietGoal, which appears to not exist for any reason other than to sue over patents, and which has sued the TV network Bravo for creating a recipe finder website. The claim is that it violates US Patent 6,585,516 for a "method and system for computerized visual behavior analysis, training, and planning." The patent basically seems to describe an online recipe database in which "the user can use the Picture Menus to choose meals for a particular time period to correspond to a customized eating plan."

I started to look further into the lawsuit, and I realized that Bravo was not the only target of DietGoal. Not by a long shot. Last September, right before the new patent law went into effect making it difficult to bundle defendants, DietGoal sued a ton of sites -- mainly focused on restaurants (including, but not limited to, Arby's, Chick-fil-A, Dairy Queen, Dunkin' Donuts, Jack in the Box, McDonald's, Panda Express, Taco Bell, Sonic, Wendy's, Burger King, Whole Foods, Tim Hortons, Dominos and Starbucks) as well as a few non-restaurants, including Weight Watchers, Google, IAC and Hearst Communications. If you look at the docket on that one, there are a ton of "dismissals" by DietGoal, which likely means that it was successful in getting the companies to pay up. Others do appear to be fighting it and hitting back with counterclaims and questioning the validity of the patent. Some, like Dominos and Wegmans also sought to break apart the case and make DietGoal face each defendant individually in different cases. That case has also bounced around among a few different judges already.

On April 3rd, DietGoals filed an amended complaint in that original case, attempting to add in a huge list of new defendants -- including Bravo and a bunch of others (many of whom we'll discuss in a bit). On May 24th, the magistrate judge denied DietGoal's motion to file that third amended complaint with all those other parties.

Basically, it looks as though the DietGoal is operating under the premise that anyone who offers recipes online should have to pay it some money. Of course, all of this should make you wonder: was a patent really needed for the sake of encouraging companies to put databases of recipes online?

from the can't-own-a-recipe dept

Reader Brian points us to a story where his hometown pizza shop is apparently suing a former employee, claiming he "stole" their family recipes, and used them to open a competing pizza place 20 miles away. We've seen some similar disputes in the past, but have pointed out how the very lack of the ability to use intellectual property to prevent competition in the restaurant business is part of what has helped that industry thrive. Without seeing the actual lawsuit, it's difficult to know what they're actually suing him for. Perhaps they could make a trade secret claim, but recipes themselves cannot be copyrighted, so there's no copyright claim here.

But, really, as you read the quotes from the pizza shop owners who are doing the suing, it appears that they're making an emotional claim, saying things like: "Don't take something that someone else's family started and claim it as your own, because it is not." Okay, sure, but how do you think your family came up with the original recipe in the first place? It wasn't invented from scratch. They got a basic recipe from somewhere else, and perhaps improved upon it, but when someone orders a pizza from your shop, do you tell them who gave the family the original recipe? Of course not.

Then there's this: "I just don't want to compete against my own food." Right, so you're using the law for anti-competitive purposes. The law is supposed to encourage competition, not discourage it.

from the not-this-again dept

In this era where everyone wants to "own" unownable ideas and concepts, is it any wonder that there's more and more talk about the idea of extending copyright to other things? We've already discussed how the fashion industry has been agitating for special new "copyrights" despite the fact that their industry is thriving, in part because of the lack of protectionism in the industry. In fact, research suggests that adding such protectionism would significantly harm the industry, by slowing down innovation, decreasing competition and output.

A second area where we've seen stories similar to this is in the food industry. While we just wrote about the ridiculous story of Lebanon wanting official "food copyright" on hummus, falafel and other middle eastern treats, there are some chefs who take the idea of recipe ownership quite seriously. As it stands today, a recipe is not copyrightable -- though the description of how to cook the recipe could be. The list of ingredients, however, is factual.

But chefs are increasingly trying to somehow guard what makes them unique. We've already seen stories of restaurant owners suing former employees for opening up similar restaurants, but it's not clear what's illegal about that at all. If you think you can do a better job than your boss, then splitting off and forming a competitor is how innovation happens. Just look at the history of Silicon Valley, and you see this repeated time and time again. The traitorous eight famously quit Shockley Semiconductor to form Fairchild Semiconductor, because they didn't like how Shockley ran his company (as well as his decision that silicon wasn't worth pursuing). Without that we wouldn't have "Silicon" Valley. And, of course, from people leaving Fairchild, Intel was born.

But, for folks not in the tech industry, apparently these sorts of splits still seem controversial. My friend Tom sent over an article in The Atlantic about battles over bread recipes and bakeries in New York. Apparently, two partners at a bakery split up, and the author of the article expresses some concern over the "ownership" of the bakery's distinctive bread recipes. The article also notes a similar split between the partners of the famous Magnolia cup cake shop in New York, leading one to form a competitor with a similar recipe. Amongst these battles, though, there is one part regarding the bread makers that seems questionable and fraudulent (which happened separately from the ownership split). One of the bread distributors hired on some of the original bakery's employees and started baking its own bread, but used the name and logo of the original bakery, and then delivered the bread to restaurants without letting them know that it wasn't from the actual bakery. That's outright fraud.

But the good news in this story is that while it appears the "divorce" between bakery owners wasn't that pleasant, and the original owner isn't thrilled that there's a competitor in the space, he does seem to realize that there are better ways to go about dealing with the issue than trying to "protect" his bread (especially since his recipes are based on old Roman recipes). He actually notes that the bigger challenge is increasing the size of the "craft bread" market and taking away business from the big industrial bread makers. It's not about protectionism of a tiny market, it's about increasing the overall pie of the market he's in -- and that may even mean teaming up with his former partner with whom he split, noting that he's looking to form a Craft Bread Association, and will ask his former partner to be the first member. How refreshing.

from the using-this-recipe-may dept

Earlier this year, we noted that intellectual property issues were moving into the restaurant business, as one restaurant owner accused another of stealing both a restaurant concept and recipes from her restaurant. Last year we also had a story about some chefs trying to get additional copyright protection for their meals, which was a silly request. However, it seems like intellectual property concerns continue to flood the food space, with the firm Attributor, who sets themselves up as something of an online policing system for copyright infringement, has come out with a report about just how common it is for recipes to get passed around the web and posted by multiple people, potentially violating someone's copyrights. As the US Copyright Office makes (somewhat) clear, you cannot copyright a list of ingredients -- but you can copyright "substantial literary expression in the form of an explanation or directions." In other words, the explanation of what to do with the ingredients could be subject to copyright.

But the real question is whether or not this is really an issue. Attributor comes up with a bunch of made up numbers about how much this is "costing" certain sites, but that's not true. As with any bogus copyright "loss" stats, the numbers are both made up and exaggerated -- and have nothing to do with "losses." Rather, they represent dollars that the copyright owner failed to capture, meaning that it's a marketing problem, not a legal one. The story notes that top recipe sites like Epicurious and Allrecipes are losing out on traffic, but it fails to explain how. I use Epicurious quite a bit, and I go to the site not just because I trust it to have good recipes, but because of the additional features Epicurious provides -- including user ratings and reviews. In other words, even with the same recipes being available all over (and, perhaps infringing on copyrights) Epicurious has effectively bypassed this legal issue through smart business practices: building in additional features that make the site valuable enough to me that it's better than just searching out any random recipe online.

Furthermore, it seems especially silly to worry about copyrights in the recipe space. The purpose of copyrights (broken record, I know) is to encourage the creation of content. It is quite difficult to believe that anyone out there believes there is insufficient efforts in creating new recipes. In other words, without enforcing copyrights, there is already sufficient incentives for people to continually create new, interesting and delicious recipes. Historically, recipes have always been a type of content that was eagerly and willingly shared and passed around -- and it has always been common for people to create "derivative works" in modifying and adjusting the ingredients and the instructions to try to improve upon the product. To suddenly bring copyright protections into the space seems both a rejection of that history as well as against the entire purpose of copyrights.